This document was prepared by Research Fellow Professor Warren Brookbanks as Maxim Institute’s submission to the Justice Ministry’s consultation process.

EXECUTIVE SUMMARY

Hate speech law in New Zealand is currently the subject of scrutiny and warranted conversation. This comes in response to an increased public understanding of the discrimination and hurt experienced disproportionately by minority communities. 

However, we are not persuaded that increasing penalisation and defining new offences in the very broad terms outlined in this consultation document is the best way to tackle the problem of hateful speech.

These measures would certainly create new incursions into the fundamental freedom of expression for New Zealanders. Yet, the proposals offer no evidence that any of the suggested responses have proven successful in increasing social cohesion or reducing hatred.  

The proposals outlined in the consultation document should not form the basis of legislation. This submission follows the structure of the consultation document, responding to each of the proposals in turn, affirming and opposing different elements, and offering recommendations. 

While we oppose the implementation of the proposed punitive legislation, if it is to progress we submit that an alternative justice approach such as Te Ao Mārama is more appropriate to fulfil the ultimate goal of increased social cohesion in Aotearoa New Zealand. 

Broadly we: 

Affirm

• that hateful speech and discrimination is an area of antisocial behaviour which requires an appropriate response. Therefore, we welcome the public discussion around what can and should be done to support and encourage greater social cohesion for all people in New Zealand. 
• the proposed format of the proposed new criminal offence to make it more easily understood, as the current wording of s131 of the Human Rights Act is unnecessarily complex
• in principle the imposition of the much higher threshold of “hatred” in place of the lower gradations of “hostility,” “ill-will,” “contempt,” and “ridicule.” However, we have significant concerns that while “hatred” seems a higher threshold, there is a lack of definition of what this term encompasses, which leaves it open to wide interpretation in practice. 

Oppose

• the ill-defined nature of “hatred” in these proposals that breaches the principle of certainty. This principle requires that people are governed by clear rules that limit the prospect of the exercise of arbitrary power by officials. 
• the much broader grounds for discrimination outlined compared with current legislation. We are concerned that expressing differing views about a matter may become capable of being construed as an attack on a group that shares that characteristic and risk criminalising people unnecessarily.
• the significant increase in punishments outlined in Proposal Three. In our view the current sentences available under s131 adequately accommodate the seriousness of offending likely to be prosecuted under the section.
• the breach of the principle of minimum criminalisation inherent in Proposal One. We argue that criminal law should only be expanded if it is the least restrictive appropriate response. Introducing further criminalisation should not be taken without an honest assessment of the probable effectiveness, unforeseen consequences, and an exploration of the possibility of managing the problem by other forms of control or regulation. 
• the introduction of a law so remote from the actual harm it is seeking to prevent. Legislating such an inchoate (prepatory) unlawful act (incitement to discrimination) for behaviour would criminalise a risk that a risk of incitement could materialise. We believe this type of offending is too far removed from harm to justify the proposed penalties and criminalisation. 

Recommend

• research into methods of dealing with hateful and discriminating speech other than penalisation; ideas that address the cultural and community roots of hatred and discrimination.
• that any legislative response should be grounded in an approach consistent with the Te Ao Mārama model of healing and rehabilitation.